United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge
before the court are three motions, all of which are fully
briefed and were argued before the court at a February 19,
2018 hearing. Two of the three motions are related: both
concern whether plaintiff will be permitted to use at trial
the late-disclosed opinions of one of its experts, Dr. Stone.
On this issue, the court concludes that allowing the new
opinions would be overly prejudicial to defendant at this
late stage in the case. The court will therefore grant the
defendants' motion to exclude the untimely opinions and
deny plaintiff's motion for leave to supplement its
third motion is a summary judgment motion, which is premised
on defendants' assertion that many of plaintiff's
allegations of negligence, as set forth in the complaint, are
not supported by any of the expert opinions. As the parties
agree, the absence of expert opinions is generally, absent
“rare” circumstances not applicable here, fatal
to a medical malpractice claim under Virginia law. See
Beverly Enters.-Va.v. Nichols, 441 S.E.2d 1, 3 (Va.
1994) (“Expert testimony is ordinarily necessary to
establish the appropriate standard of care, a deviation from
that standard, and that such deviation was the proximate
cause of damages.”). Accordingly, any alleged breach of
the standard of care that is unsupported by any expert
testimony cannot go forward to trial. See Sharpe v.
United States, 230 F.R.D. 452, 459 (E.D. Va. 2005)
(explaining that because the court was excluding all of
plaintiff's expert opinions due to untimely and
insufficient expert reports, summary judgment in favor of
defendant was warranted). After conducting a careful
comparison of the alleged negligence set forth in the
complaint and the opinions offered by plaintiff to support
those allegations, the court will grant in part and deny in
part the motion for summary judgment.
parties are familiar with the factual background in this
medical malpractice action, and thus it is unnecessary to
discuss that background in any detail. Instead, the court
will focus on the facts relevant to each of the motions in
the context of discussing them below.
Motions Regarding Dr. Stone's Supplemental
case was originally filed in state court, and significant
amounts of discovery had been conducted, including expert
discovery. When the case was on the verge of trial, plaintiff
took a voluntary non-suit. Afterward, plaintiff refiled the
case in this court. The court issued a scheduling order
which, as relevant here, contained a number of deadlines
related to expert discovery. Pursuant to that order (and
including an agreed-upon brief extension), plaintiff timely
designated two experts relevant here, neither of whom had
been utilized as experts in the state case: Dr. Stone and Dr.
Selwyn. Plaintiff's September 26, 2019 designation
included expert reports, and defendants do not challenge the
timeliness or the sufficiency of the initial expert
December 13, 2018, in advance of Dr. Stone's deposition,
scheduled for December 18, 2018, plaintiff's counsel sent
a letter to defense counsel intending to supplement
plaintiff's original expert disclosures. The letter
contained the following language:
As Dr. Selwyn testified in his recent deposition, these
additional documents did not change or alter his expert
opinion. His medical opinions provided in the designation
remain the same. The same holds true for Dr. Stone, however,
you will obviously have the opportunity to question him at
his deposition on Tuesday, December 18, 2018.
(Dkt. No. 35-1, at 3.)
December 18, 2018, counsel for defendants deposed Dr. Stone.
On December 27, 2018 (which was a Thursday at 2:15 p.m.),
plaintiff emailed “supplemental expert
designations” with additional opinions to be offered by
Stone, but no supplemental written report was included. The
discovery cut-off date fell on that Sunday, December 30,
2018. Thus, there was effectively one and one-half business
days from the supplemental designation to the cut-off of
defendants filed their motion in limine on January
9, 2019, plaintiff sought leave from the court to supplement
on January 11, 2019. The proffered supplemental report of Dr.
Stone, however, was not provided to defense counsel until
noted, arguments were heard on the pending motions on
February 19, 2019. The pretrial conference is scheduled for
March 21, and the trial is set to begin on April 5.
Governing Law and Application
26(a) requires an expert witness to submit a written report
that contains “(i) a complete statement of all opinions
the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them; [and] (iii) any exhibits that will be used to summarize
or support them . . . .” The report “should be a
comprehensive document that, by itself, provides all the
expert's opinions that will be offered at trial, along
with the bases for those opinions.” Samsung Elecs.
Co. v. ...